1

See Memorandum and Order, Dec. 15, 2009 (not reported)(ECF No. 75); Memorandum and Order, Nov. 30, 2010 (not reported) (ECF No. 104),

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH MALIK MILLER : CIVIL ACTION:

v. ::

DAVID DIGUGLIELMO, et al. : NO. 07-2686

MEMORANDUM

Baylson, J. February 4, 2010

Presently before the Court is a Motion for Reconsideration of the Court’s November 10,

2010 ruling, filed by Defendants William Radle and Thomas Dohman on December 7, 2010

(ECF No. 106). Defendants request the Court (1) conclude the facts are undisputed that

Plaintiff’s ring was contraband and that Plaintiff cannot have any property rights to contraband

held while in prison, and (2) hold that Defendants are entitled to qualified immunity as applied to

Plaintiff’s due process claim. Plaintiff responded to the motion on December 14, 2010 (ECF No.

106). In light of Defendants’ Motion, the Court has decided to take a fresh look

I. Summary Background and Procedural History1

A. Plaintiff’s Possession of His Wedding Ring

Plaintiff has been incarcerated since 1987. Pl.’s Dep. at 10:2-14. He was initially held at

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the State Correctional Institute at Graterford (“SCI Graterford”) in 1987 and returned there

between 2000 and 2007. Id. In 1992, while Plaintiff was at Western Penitentiary (“SCI

Pittsburgh”), Plaintiff’s family gave him a wedding ring as a gift. Id. at 49:13-25, 50:1-2, 52:5-

12. According to Plaintiff’s testimony, Plaintiff’s family sent the ring to him through the

“Chaplain Department,” which dealt with “religious artifacts” such as wedding bands at that

time. Id. at 50:3-5. The ring remained with Plaintiff when he was transferred to SCI Graterford

in 2000. Id. at 52:5-7. Although Plaintiff testified that prison officials sometimes questioned

him about the ring, informing him that he might have to eventually send the ring home, Plaintiff

retained possession of the ring until May 28, 2006. Id. at 52:5 to 53:5.

According to Plaintiff’s deposition, Dombrosky, Defendant Ronald Quick, and one other

officer at Graterford had searched Plaintiff’s cell prior to May 28, 2006, without seizing the ring.

Pl.’s Dep. at 60:12 to 61:1. Plaintiff stated specifically that “Quick [had] been in [his] cell a

number of times. He [had] seen [the] ring . . . and he told [Plaintiff] in the past, too, that they

[were] going to make [Plaintiff] send it home[,]” but had let Plaintiff keep the ring. Id.

Dombrosky testified in his deposition that he did not “believe” that he had ever seen the ring

prior to the 2006 cell search and would have confiscated it prior, had he seen it. Dombrosky

Dep. at 29:52-7. The record does not contain a deposition or any factual statement from Quick.

On May 28, 2006, Dombrosky and Quick searched Plaintiff’s cell, acting as a search

team conducting random cell searches. Dombrosky Dep. at 26; Radle Dep. at 20:1 to 22:11. On

that date, Dombrosky confiscated, among other items, Plaintiff’s wedding ring, described on the

Confiscated Items Receipt as a “silver tone ring with large stones.” Pl.’s Dep. at 47:8-9, 47:19-

20; 52:5-7; Dombrosky Dep. at 28:1-29:24; Ex. G. At the time of the search, Plaintiff was not

2 The misconduct also charged Plaintiff with possession of “scented oil” and photographsdepicting Plaintiff with prison employees. Dombrosky Dep. at 35-36, Defs.’ Ex. 6 at P1.

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wearing the ring, but had it in his cell, possibly in a drawer. Pl.’s Dep. at 68. At the outset of the

search, Dombrosky asked Plaintiff if he possessed any contraband and Plaintiff stated that he did

not. Dombrosky Dep. at 28:1-6; Pl.’s Dep. at 46:23 to 47:19. Plaintiff pled not guilty to the

subsequent misconduct charge for possession of contraband. Pl.’s Ex. B at P-2; Pl.’s Ex. C at D-

3.2

B. Seizure of Plaintiff’s Wedding Ring and Grievances Filed by Plaintiff

Following a May 31, 2006 misconduct hearing, Hearing Officer Mary

and informed Plaintiff that the Internal Security

Department (“ISD”) would allow Plaintiff to send the ring home. Pl.’s Dep. at 58-59; Pl.’s Ex. B

at P-2

Dep. at 59:11 to 62:9; Pl.’s Ex. C at D4, pp.

1-2. The grievance was assigned to Radle, who responded in writing on June 7, 2006, that the

ring was contraband but Plaintiff had been “allowed to send that item home.” Pl.’s Ex. C at D-4,

p. 3.

On October 13, 2006, after Plaintiff received the grievance response, Radle informed Plaintiff

verbally that his wedding ring was missing. Pl.’s Dep. at 68:12-21; Radle Dep. at 18:17 to

19:14; Pl.’s Ex. C at D5, p.3. Radle instructed Plaintiff that he could seek reimbursement for the

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ring with proof of ownership or a receipt, or bring a criminal complaint regarding its

disappearance. Id.

On October 28, 2006, Plaintiff filed Grievance No. 168480 about the loss of his ring,

requesting reimbursement and indicating his intention to bring civil and criminal actions against

Dombrosky. Pl.’s Dep. at 66:8-67:22; Pl.’s Ex. C at D5. On November 14, 2006, Radle

submitted a written response which stated, “I have informed you several times to obtain a copy of

the receipt for your ring that was confiscated and we will proceed from that point. I cannot

proceed until you provide a copy of a receipt for the property.” Radle Dep. at 35-36, 39-40; Pl.’s

Ex. C at D-4, D-5. Plaintiff filed no appeal to this response, Pl.’s Dep. at 73:1 to 75:20, but,

instead, provided to ISD an appraisal sent to him by his sister, valuing a white gold ring

containing diamonds at $3000. Pl.’s Dep. at 76:3-76:21; Pl.’s Ex. C at D6; Pl.’s Ex. B at P4.

Around this time, Dohman located a ring believed to be Plaintiff's in the Misconduct Hearing

Room. Dohman Dep. at 44-45. Dohman testified in his deposition that he “believed” this to

have occurred prior to receipt of Plaintiff’s appraisal. Id. at 44:12-22.

Dohman took the ring off prison grounds and brought it to Chiccarine's Jewelers in

Collegeville, Pennsylvania, for an independent appraisal. Dohman Dep. 47:2-11. Dohman's

deposition states that he believed Plaintiff was “trying to get a ... false amount for an appraisal on

his ring” and that Dohman intended to “include that in a charge for misconduct [he] was

preparing to write at some point in time.” Id. at 47:16-19; 48:20 to 49:6. He testified that he

did not file any paperwork in taking the ring off prison grounds, although he “believe[s]” he told

Deputy Michael Lorenzo that he was planning to take the ring for appraisal. Id. According to

3

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Dohman, he was allowed to take “confiscated items out of the prison . . . unless [the items were]

a crime against the crime code, like drugs, weapons, cell phones, things that the Pennsylvania

State Police would be able to charge criminally for[, which would require] a chain of custody.”

Dohman Dep. 47:20 to 48:3.

December 20, 2006 interview with

Plaintiff. 7-10. Dohman stated early in the interview that

Plaintiff’s “ring problem I believe is resolved.” Pl.’s Ex. C at D-10, p. 2.

Dohman [later] informed Plaintiff that he had found Plaintiff's ring. Pl.’s Ex. C at D-10,p. 4. He also told Plaintiff that the Collegeville jeweler had told Defendant that the ringwas sterling silver set with cubic zirconias worth $50 “at a flea market on a good day.”Dohman Dep. at 50:8-13; Pl.’s Ex. C at D10, pp. 5-6.3 Plaintiff disclosed to Defendantsthat (1) his family obtained the ring from a dealer; (2) his family did not have a receipt,but could bring the dealer forward to testify; and (3) his family had procured the appraisalfor insurance purposes. Pl.’s Dep. at 118:11-15; Pl.’s Ex. C at D10, pp. 18-19. Dohmanstated to Plaintiff that he would “talk to the Deputy about mailing [Plaintiff's] ring out,especially based on the fact that [Plaintiff] had a three thousand dollar appraisal .... we'llsee what he has to say about mailing that out.” Pl.’s Ex. C at D10, p. 19. At theinterview's conclusion, Dohman reiterated that “we'll arrange for the ring and ... we'll gofrom there.” Pl.’s Ex. C at D10, p. 22.

Dohman later brought a charge of insurance fraud against Plaintiff for inflating the ring’s value,

as one of several misconduct charges against Plaintiff. Id. at *6. On January 5, 2007, Hearing

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Officer Canino found Plaintiff guilty of all charges and sentenced him to 360 days in the

Restricted Housing Unit. Id. On September 25, 2007, Plaintiff was transferred from SCI

Graterford to SCI Huntingdon. Pl. Dep. at 9; Moyer Dep. at 43, 49.

At a December 9, 2009 hearing, see portion of argument referenced below at Section

IV(A), pp. 10-11, the Court suggested a procedure to attempt to determine whether the ring

Defendants asserted was Plaintiff’s ring was, in fact, Plaintiff’s ring. See Transcript of

December 9, 2009 hearing, pp. 63-67; ECF No. 79. The procedure was unsuccessful.

According to statements submitted in connection with Defendants’ first summary

judgment motion, but not supported by sworn affidavits or declarations by any party, prison

officials sent the ring to SCI Huntingdon in January 2010, where Plaintiff is currently

incarcerated, for Plaintiff's examination. Pl's Suppl. Counter Statement of Facts ¶ 109. Plaintiff

stated upon examination that the ring shown to him was not his, but a “duplicate.” Id. “[B]ased

on communications not part of this record,” Defendants admit that Plaintiff stated the ring was

not his. Defs.' Reply to Pl.'s Suppl. Counterst. of Facts ¶ 109. Defendants do not admit to the

fact asserted by Plaintiff that he claimed the ring shown to him to be a “duplicate.” Id.; Pl.'s

Suppl. Counterst. of Facts ¶ 109. After a colloquy at subsequent hearing on Defendants’ second

summary judgment motion regarding Plaintiff’s assertion that the ring was a duplicate,

Defendants conceded, for the purpose of the summary judgment motion, that the ring remains

lost. Transcript of August 11, 2010 hearing, pp. 8:4-12; 10:7-21 (ECF No. 99).

II. Parties’ Contentions

Defendants contend on Motion for Reconsideration that the Court failed to properly

consider the issue of the contraband status of Plaintiff’s wedding ring. Defs.’ Mot. for Reconsid.

4 In Forbes, the Third Circuit announced a supervisory rule requiring that, where a partypleads qualified immunity, District Courts must “specify those material facts that are and are notsubject to genuine dispute and explain their materiality.” 313 F.3d at 146.

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at 2. Defendants aver that it is undisputed that Plaintiff’s ring was contraband. Id. Arguing that

a prisoner cannot maintain a protected property interest in contraband, Defendants imply that

Plaintiff had no associated due process rights or, if the Court so held, this would not be

considered clearly established law for the purpose of a defense of qualified immunity. Id. at 2-3.

Finally, Defendants contend that no disputed issues of fact exist and, thus, the Court

should have decided qualified immunity as a matter of law. Id. at 5-7. If disputed issues of fact

remain, Defendants aver that the Court failed to properly identify them in accordance with Forbes

v. Township of Lower Merion, 313 F.3d 144 (3d Cir. 2002).4 Id. at 7.

Plaintiff responds that the issue as to whether Plaintiff has a protected property interest in

his ring has been previously raised and rejected by this Court in its November 20, 2010

Memorandum, ruling on Defendants’ Second Motion for Summary Judgment. Pl.’s Resp. at 3.

Plaintiff argues further that Defendants have previously acknowledged Plaintiff’s ownership right

5 Amendments to the Federal Rules Of Civil Procedure became effective on December 1,2010. The oft-cited summary judgment standard formerly found in Rule 56(c) is now located inRule 56(a), with one alteration: the substitution of the word “dispute” for “issue,” which theRules Advisory Committee explained better describes the summary judgment inquiry, but doesnot affect the substantive standard or the applicability of prior decisions construing the standard.Fed. R. Civ. P. 56(a); Fed. R. Civ. P. 56 Advisory Committee's Note.

Pursuant to 28 U.S.C. § 2074(a) and the April 28, 2010 Supreme Court order, theamended rule will govern all proceedings commenced on or after December 1, 2010, and allproceedings then pending, “insofar as just and practicable.” United States Courts, Rules andProcedures, Rules and Forms Amendments Effective 12/1/10 (Jan. 11, 2011, 1:36 PM),http://www.uscourts.gov/Rule sAndPolicies/FederalRulemaking/Overview/RulesForms120110.aspx. Thus, when necessary, the Court quotes to the amended rule.

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and interest in his ring, based on their repeated acknowledgments that Plaintiff should be allowed

to send the ring home. Id. at 4-5. As to qualified immunity, Plaintiff avers that a reasonable

official in Radle and Dohman’s shoes would have known that telling an inmate that he can send

his property to his family, and then interfering with the inmate’s ability to do so, is a violation of

a due process right. Id. at 4-5. Finally, Plaintiff posits that this Court’s ruling would not “open

the floodgates” to due process challenges to confiscation of contraband. Rather, the Court’s

ruling is limited to situations in which prison officials “acknowledge a property interest and

make representations regarding protections afforded to that interest.” Id. at 5.

III. Legal Standards

Summary judgment is appropriate if the movant can show “that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).5 An dispute is “genuine” if the evidence is such that a reasonable jury

could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A factual dispute is “material” if it might affect the outcome of the case under

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governing law. Id.

Where the non-moving party bears the burden of proof on a particular issue at trial, the

moving party's initial burden can be met simply by “pointing out to the district court that there is

an absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). Summary judgment is appropriate if the non-moving party fails to rebut

by making a factual showing “sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at

322. Under Rule 56, the Court must view the evidence presented on the motion in the light most

favorable to the opposing party. Anderson, 477 U.S. at 255.

The purpose of a motion for reconsideration is to correct manifest errors of law or fact or

to present newly discovered evidence. Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d

Cir. 1999). Parties seeking reconsideration must show at least one of the following grounds: (1)

an intervening change in controlling law, (2) the availability of new evidence that was not

available when the court issued its order, or (3) the need to correct a clear error of law or fact or

to prevent manifest injustice. Id. Parties may not use a motion for reconsideration to “request

that a court rethink a decision already made.” In re Blood Reagents Antitrust Litigation, 2010

WL 5097796, at *1 (E.D. Pa. Dec. 14, 2010). “Because federal courts have a strong interest in

the finality of judgments, motions for reconsideration should be granted sparingly.” Continental

Cas. Corp. v. Diversified Indus., Inc., 884 F. Supp 937, 943 (E.D. Pa. 1995).

IV. Discussion

A. A Genuine Issue of Material Fact Exists as to Whether Plaintiff’s Ring isContraband.

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1995) (

”).

2. No Due Process Rights Associated with Contraband Per Se

As one has no "property right in that which is not subject to legal possession[,]" a person

has no inherent property rights in an item classified as contraband per se. Helton v. Hunt, 330

F.3d 242, 247-48 (4th Cir. 2003); see Cooper, 904 F.2d at 305 (holding for purpose of Section

1983 claim that contraband items seized pursuant to a criminal proceeding are subject to

forfeiture without due process). Without a property or liberty interest, an individual may make

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no claim of a deprivation of due process. See Culinary Service of Delaware Valley, Inc. v.

Borough of Yardley, Pa., 385 Fed. App'x 135, 146 (3d Cir. 2010) (affirming the dismissal of

plaintiff’s due process claim because plaintiff did not assert a “protected interest” in the ability to

run a business).

Thus, at least one Circuit Court of Appeals has recognized that a prisoner is not entitled

to a

6Plaintiff’s testimony states that the prison administration “always had a standard policy,but they didn’t go by it.” 49:20 to 50-13. However, it is unclear from his testimonywhether Plaintiff is referring to a “standard policy” regarding possession of street clothes,jewelry, or wedding rings.

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49:20 to 50-13. Plaintiff testified that

prisoners were allowed to wear street clothes and jewelry and that, when his family sent him his

ring, it was sent through the Chaplain Department, which gave approval for Plaintiff to keep the

ring in his possession.6 Pl.'s Dep. at 49:13-25, 50:1-2, 50:3-5, 51:5-9; 52:5 to 53:5.

7 DOC Policy Statements are “promulgated by the Secretary of Corrections acting underthe authority of 71 P.S. § 310-1.” Wheeler v. Beard, No. Civ. A. 03-4826, 2005 WL 1217191, at*4 (E.D. Pa. 2005) (Yohn, J.).

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DOC Policy Statement DC-ADM 815: Personal Property, State Issued Items, and

Commissary/Outside Purchases further defines contraband “as any item possessed by an inmate

or found within the facility that is prohibited by law or expressly prohibited by those legally

charged with the administration and operation of the facility or program.” Commonwealth

http://www.portal.state.pa.us/

portal/server.pt/document/916572/815_personal_property_state_issued_items_and_

commissary_-_outside_purchases_pdf (emphasis added).

DC-ADM 815 3-4.

That list includes "personal property in excess of the allowable limits" and notes that "items such

as televisions, typewriters, radios, jewelry, etc., which are of value must be disposed of in

accordance with established state guidelines and procedures." Inmate Handbook 27;

The Handbook states that an inmate with "excessive personal property" may

choose to have items sent home, but prisoners are "not permitted to ship items that are

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contraband." DOC Inmate Handbook 5. items deemed to

be contraband will be destroyed or otherwise disposed of[, although d]estruction of contraband

will ONLY occur after the inmate’s misconduct hearing is held and the misconduct appeal

process is exhausted. When an inmate files a grievance regarding confiscated contraband,

destruction of the property will only occur after the appeal process has been exhausted.” Id. at 3-

5. Both the Handbook and the version of DC-ADM 815 available on the DOC website post-date

the 2006 seizure. Defendants have not introduced earlier versions into the record, nor has this

Court found earlier versions on the DOC website.

DC-ADM 815 additionally provides a list of items that “may be retained after being

examined and screened thoroughly for contraband” at the time an inmate is committed into a

state correctional institution. DC-ADM 815 3-1. Among those items are watches of a “$50.00

maximum value with time, day, and date feature only[;]” rings “[w]edding band only, no gem

stones;” and religious medals “no larger than 1 ¼ inches and with a chain no longer than 26

inches and a maximum value of $50, no gem stones.” Id.

According to an unpublished opinion, which addressed DC-ADM 815 and a

prisoner-plaintiff's First Amendment rights associated with confiscated religions objects, the “1

1/4 inch size limitation [on religious medals] has been included in DOC written policy, in some

format, since approximately 1994.” Piskanin v. Rendell, No. 06-129J, 2008 WL 4442004, at *3

(W.D. Pa. 2008) (Lenihan, Magistrate J.). In Piskanin, the prison administration confiscated the

plaintiff’s religious medal when he was committed to SCI Graterford in July 2005 and, again,

when the plaintiff’s family sent the medal to him upon his transfer to SCI Camp Hill. Id. The

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defendants kept the medal, pending resolution of grievances filed by the plaintiff and told him

that he could mail the medal home or have it destroyed. Id. The plaintiff challenged the prison’s

confiscation of his medal as “den[ying] him the opportunity to practice his Catholic religion in

violation of the First Amendment.” Id. at 4 Magistrate Judge Lenihan held, under Turner v.

Safely 482 U.S. 78, 89 (1987), that the size limitation on religious medals was “reasonably

related to the prison’s legitimate penological interests in promoting institutional security”

because jewelry items “can be used as or fashioned into a weapon, or stolen or smuggled within

the facility due to perceived value and/or uniqueness.” Id. at 6.

The revised version of DC-ADM 815 found on the DOC website, with an effective

date of May 29, 2009, indicates that this section of the policy statement addressing wedding

bands was last revised in November 2009. DC-ADM 815 3-1. While this Court can locate

decisions addressing DC-ADM 815 from as early as 1992, see e.g., Thompson v. Lehaman, Civ.

A. No. 91-1501, 1992 WL 28052, at *1 (E.D. Pa. 1992) (Newcomer, J.);

Piskanin is the only decision containing any reference to a

policy on wedding bands. Further

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purpose of the PLRA. The PLRA precludes a prisoner from bringing an action "with respect to

prison conditions under section 1983 of this title . . . by a prisoner confined . . . until such

administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Court notes

that, in deciding the issue of qualified immunity as to Plaintiff’s due process rights, it did not rely

on the PLRA exhaustion cases to announce a new rule of law. Rather, the Court used those cases

to clarify what would constitute a “meaningful” or “adequate” post-deprivation remedy. While

finding those cases to be instructive, the Court has now determined them to be unnecessary in

deciding the sufficiency of Plaintiff’s evidence in contesting Defendants’ Second Motion for

Summary Judgment.

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, the Court specifically reaffirmed its prior decisions that cases presenting a

factual dispute about the grounds asserted for qualified immunity preclude a grant of qualified

immunity. Id. ; see also Johnson v. Jones, 515 U.S. 304 (1995). This is, of course, the

applicable law in the Third Circuit, as cited in this Court’s Memorandum of November, 30, 2010

at page 28-29, and repeated in the recent case of Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd

Cir. 2010).

In this case, there are considerable factual disputes that impact the issue of qualified

immunity. To start, a question exists as to the cause for the reversal by prison officials, including

Defendants, of a 14-year practice of allowing Plaintiff to keep his ring in his cell, whether or not

the ring was Plaintiff’s “wedding band” and whether or not the ring was valuable or a mere

trinket. the contraband question remains relevant to whether

Plaintiff has due process rights associated with his ring.

This Court finds that factual disputes exist, as well, implicating the question of whether

Plaintiff received a meaningful post-deprivation remedy. It is clearly established that the

deprivation of a prisoner's property by a state official does not violate procedural due process

requirements as long as "a meaningful post-deprivation remedy for the loss is available."

Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008) (citing Hudson v. Palmer, 468 U.S. 517, 533

(1984) (holding that intentional destruction of property is not violative of due process where

prisoner is provided with post-deprivation remedy); see also Parratt v. Taylor, 451 U.S. 527

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(1981) (holding that negligent destruction of "hobby materials" not violative if prisoner is given

post-deprivation remedy). The general rule is that due process requires an "opportunity to be

heard and it is an 'opportunity which must be granted at a meaningful time and in a meaningful

manner.'" Parratt, 451 U.S. at 540 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

The issue of whether Defendants denied Plaintiff’s right to a meaningful post-deprivation

remedy is a question of law. See e.g. In re Prudential Ins. Co. America Sales Practice Litigation

Agent Actions, 278 F.3d 175, 180 (3d Cir. 2002) (“Issues pertaining to the adequacy of [a

plaintiff’s] ‘opportunity to be heard,’ are questions of law subject to plenary review.”) (quoting

In Re Tutu Wells Contamination Litig., 120 F.3d 368, 383 (3d Cir.1997)); Cozzo v. Tangipahoa

Parish Council--President Government, 279 F.3d 273, 290 (5th Cir. 2002) (The district court's

application of the Parratt/Hudson doctrine presents a question of law[.]”). The question of

whether “it would be clear to a reasonable officer that [Defendants’] conduct was unlawful in the

situation [they] confronted,” Reedy v. Evanson, 615 F.3d 197, 224 (3d Cir. 2010), is similarly a

question of law. Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007). However, the “qualified

immunity defenses asserted by [Defendants] do not present ‘neat abstract issues of law.’” Ortiz,

Rather, the Court finds that a

decision on this matter depends first on resolution of factual disputes.

After the ring was confiscated, a hearing on

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At this point, the ring, then in the custody of the DOC,

mysteriously disappeared.

Defendants have since conceded for the purpose of their second summary judgment motion that

the ring remains lost. Transcript of August 11, 2010 hearing, pp. 8:4-12; 10:7-21. If the ring is

lost, a question of fact exists as to how Dohman was able to take the ring to an offsite jeweler for

an appraisal and why the appraisal provided by Dohman diverges so radically from that provided

by Plaintiff to Defendants

nor entitled to have the

ring sent home. See e.g. Woods v. Abrams, No. Civ. A. 06-757, 2007 WL 2852525, at *19

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(W.D. Pa. Sept. 27, 2007) (Fischer, Magistrate J.) (“The fact that [t]he prisoner was not

successful in his grievance pursuit does not undermine the procedure's adequacy as a

post-deprivation remedy.”); Austin v. Lehman, 893 F. Supp. 448, 454 n. 4 (E.D. Pa. 1995) (“Of

course, that Plaintiff did not prevail in this procedure in no way affects the procedure's adequacy

as a post-deprivation remedy.”) (Brody, J.).

The decision that Plaintiff could send his ring home was never effectuated, and not,

according to the record of this case, because of any fault of Plaintiff. If Defendants are correct in

asserting that the ring is still in DOC custody, the question remains why Defendants never

followed through on the decision by Hearing Officer Canino that Plaintiff’s ring could be sent

home. If Plaintiff’s ring is still missing, then an additional factual issue remains as to why

Defendants did not provide Plaintiff with redress once he complied with Radle’s directive to

provide a proof of value. Without resolution of these factual issues, the Court cannot reach the

legal question as to whether Plaintiff received

This Court is aware that in some instances a private tort remedy is an adequate post

deprivation remedy, i.e., Plaintiff could institute a common law tort suit in state court against the

prison guards for taking his property. See

The Third Circuit has summarily dismissed prison due process claims where plaintiffs

have both state tort suits for conversion of property and prison grievance procedures available to

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them. Tapp v. Proto, No. 10-3059, 2010 WL 5095832, at *3 (3d Cir. Dec. 3, 2010) (finding

available tort claim, in addition to prison grievance procedure, provided sufficient

post-deprivation process); Mattis v. Dohman, 260 Fed. App'x 458, 461 (3d Cir. 2008) (same);

Alexander v. Gennarini, 144 Fed. App'x 924, 925 (3d Cir. 2005) (citing Hudson, 468 U.S. at

535) (same). The Court finds that this is not a realistic remedy in this case. In the first place, the

ring which Plaintiff asserts is his ring has been lost through no fault of Plaintiff. Without the

ring, which Plaintiff acknowledges as his ring, in evidence, and to be subject to an appraisal and

shown to a jury in a tort law suit, plaintiff is severely handicapped. Therefore, such a tort remedy

is clearly not a reasonably available alternative in this situation.

This opinion, and the foregoing opinions have detailed many disputed facts that need to

be the subject of a trial and therefore this Court has satisfied the Third Circuit’s requirement that

a district court specify material facts that are subject to dispute. See Forbes v. Township of

Lower Merion, 313 F.3rd 144 (3d Cir. 2002).

V. Conclusion

For the aforementioned reasons, the Court denies Defendants’ Motion for

Reconsideration.

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH MALIK MILLER : CIVIL ACTION:

v. ::

DAVID DIGUGLIELMO, et al. : NO. 07-2686

ORDER

AND NOW, this 4 day of February, 2011, based on the foregoing Memorandum, it is

hereby ORDERED as follows:

1. Defendants’ Motion for Reconsideration (ECF No. 106) is DENIED.

2. Defendants’ Second Motion for Summary Judgment remains DENIED as to

Plaintiff’s

BY THE COURT:

/ Michael M. Baylson

Michael M. Baylson, U.S.D.J.

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